Legality of the Iraq War

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The legality of the Iraq War has been widely debated since the United States, Great Britain, Italy and several other countries launched the 2003 invasion of Iraq. US and UK officials have argued that existing UN Security Council resolutions related to the first Gulf War and the subsequent ceasefire (660, 678), and to later inspections of Iraqi weapons programs (1441), had already authorized the invasion.^[1] Critics of the invasion have challenged both of these assertions, arguing that an additional Security Council resolution, which the US and UK failed to obtain, would have been necessary to specifically authorize the invasion.^[2][3][4] Critics have also argued that the invasion amounted to a war of aggression, which the post-World War II Nuremberg Tribunal called "the supreme international crime."^[5]

No UN member has brought this issue of the war's legality before the Security Council and no nation-member of the International Criminal Court (ICC) has expressed the desire to have the ICC rule on the war's legality.^[6]. The ICC does have jurisdiction over war crimes and has issued the opinion that all known war crimes are being addressed by national authorities.^[6] The political leaders of the US and UK have publicly argued the war was legal, while many legal experts and other international leaders have argued that it was illegal. Former UN Secretary-General Kofi Annan said in September 2004 that: "From our point of view and the UN Charter point of view, it [the war] was illegal."^[7] The Secretary-General's personal opinion is not that of the United Nations Organization as a whole however, because the Charter gives "primary responsibility" for matters of international peace and security to the Security Council, which has not adopted any resolutions on the matter.

The UN Security Council, as outlined in Article 39 of the UN Charter, has the ability to rule on the legality of the war, but has not been asked by any UN member nation to do so. The United States and Great Britain have veto power in the Security Council, so action by the Security Council is highly improbable even if the issue were to be raised. Despite this, there is no legal boundary to the UN General Assembly (UNGA) asking that the International Court of Justice (ICJ)—"the principal judicial organ of the United Nations" (Article 92)—give either an 'advisory opinion' or 'judgement' on the legality of the war. Indeed, the UNGA asked the ICJ to give an 'advisory opinion' on "the legal consequences arising from the construction of the wall being built by Israel", by its resolution A/RES/ES-10/14,^[8] as recently as 12 December 2003; despite opposition from permanent members of the Security Council. It achieved this by sitting in tenth 'emergency special session', under the framework of the 'Uniting for Peace' resolution. As "the principal judicial organ of the United Nations", any future ruling by the ICJ on the legality of the war would be definitive.

Contents 1 International law 1.1 Charter of the United Nations 1.2 International Criminal Court 2 Principal legal rationales 2.1 UN resolutions 2.1.1 Resolution 1441 2.1.2 Resolutions related to First Gulf War and also the 2003 Invasion 2.2 Criticisms 2.2.1 Center for Constitutional Rights and Greenpeace 2.2.2 Elizabeth Wilmshurst 2.2.3 Richard Perle 3 Domestic law 3.1 United States 3.1.1 Doe v. Bush 3.2 United Kingdom 3.2.1 Opinion of the UK Attorney General 3.2.2 Downing Street memo 3.3 Germany 4 See also 5 Notes

[edit] International law

[edit] Charter of the United Nations

Article 2 - "... All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. ..."

Article 39 - The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 41 - "The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations."

Article 42 - "Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations."

Article 51 - "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security ..."

[edit] International Criminal Court

The International Criminal Court has no jurisdiction to review the legality of the 2003 invasion of Iraq in and of itself (jus ad bellum), as the scope of the crime of aggression has not been defined, as of yet, by the numerous states party to the Rome Statute of the International Criminal Court.

However, the International Criminal Court, as well as any duly competent and fundamentally just criminal tribunal having custody of persons accused of the crime of genocide, crimes against the laws and customs of war, offenses against the law of nations, and/or crimes against humanity may be able to exercise universal jurisdiction under the Nuremberg Precedent, and place such individuals on trial (jus in bello). This is an open legal and political question, and is not likely to be resolved in the foreseeable future.

In any event, the International Criminal Court investigated the separate question of war crimes and reported that all known cases were being processed by national authorities, and could not exercise jurisdiction as a matter of complementarity, as the ICC is intended to be a court of last resort, to be used only when domestic judicial processes fail. It also reported that there was no evidence for any unprosecuted crimes against humanity from the invasion of Iraq.(See The International Criminal Court and the 2003 invasion of Iraq)

[edit] Principal legal rationales

The US and UK governments, along with others, claim that the invasion was entirely legal because it was already authorized by existing United Nations Security Council resolutions.^[9][10] International legal experts, including the International Commission of Jurists, a group of 31 leading Canadian law professors, and the US-based Lawyers Committee on Nuclear Policy have denounced this rationale.^[11][12][13]

Only individuals may commit crimes under international law, nations may not, so even if illegalities were to be established these would be against individuals and not nations. Technically, the invasion itself cannot be found to be illegal but the actions of individuals related to it could be.^[14]

[edit] UN resolutions

[edit] Resolution 1441

UNSC resolution 1441 was passed unanimously on November 8, 2002 to give Iraq "a final opportunity to comply with its disarmament obligations" that had been set out in several previous resolutions (resolution 660, resolution 661, resolution 678, resolution 686, resolution 687, resolution 688, resolution 707, resolution 715, resolution 986, and resolution 1284).

The resolution strengthened the mandate of the UN Monitoring and Verification Commission (UNMOVIC) and the International Atomic Energy Agency (IAEA), giving them authority to go anywhere, at any time and talk to anyone in order to verify Iraq’s disarmament."^[15]

On the day of the vote the US ambassador to the UN, John Negroponte, assured the Security Council that there were no "hidden triggers" with respect to the use of force, and that in the event of a "further breach" by Iraq, resolution 1441 would require that "the matter will return to the Council for discussions as required in paragraph 12". He then added: "If the Security Council fails to act decisively in the event of further Iraqi violations, this resolution does not constrain any Member State from acting to defend itself against the threat posed by Iraq or to enforce relevant United Nations resolutions and protect world peace and security."^[16]

As the same meeting, UK Permanent Representative Sir Jeremy Greenstock KCMG used many of the same words. "If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12."^[17]

On March 17, 2003, the UK attorney general Lord Goldsmith argued that the use of force against Iraq was justified by resolution 1441, in combination with the earlier resolutions 678 and 687.^[18]

[edit] Resolutions related to First Gulf War and also the 2003 Invasion

Beginning from the end of the Gulf War in 1991, the Iraqi government agreed to Security Council resolution 687, which called for weapons inspectors to search locations in Iraq for chemical, biological and nuclear weapons, as well as weapons that exceed an effective distance of 150 kilometres.[1] After the passing of resolution 687, thirteen additional resolutions (699, 707, 715, 949, 1051, 1060, 1115, 1134, 1137, 1154, 1194, 1205, 1284) were passed by the Security Council reaffirming the continuation of inspections, or citing Iraq's failure to comply fully with them.[2] On September 9, 1998, the Security Council passed resolution 1194, which unanimously condemns Iraq's suspension of cooperation with UNSCOM. One month later, on October 31, Iraq officially declares it will cease all forms of interaction with UNSCOM.[3]

United Nations Security Council resolution 678 (1990) authorizes the use of all necessary means to enforce United Nations Security Council resolution 660 (1990) and subsequent relevant resolutions and to compel Iraq to cease certain activities that threaten international peace and security, including the development of weapons of mass destruction and refusal or obstruction of United Nations weapons inspections in violation of United Nations Security Council resolution 687 (1991), repression of its civilian population in violation of United Nations Security Council resolution 688 (1991), and threatening its neighbors or United Nations operations in Iraq in violation of United Nations Security Council resolution 949 (1994).

[edit] Criticisms

The legal right to determine how to enforce its own resolutions lies with the Security Council alone (UN Charter Articles 39-42),^[19] not with individual nations.^[20][21][22] On 8 November 2002, immediately after the adoption of Security Council resolution 1441, Russia, the People's Republic of China, and France issued a joint statement declaring that Council resolution 1441 did not authorize any "automaticity" in the use of force against Iraq, and that a further Council resolution was needed were force to be used.^[23] Critics have also pointed out that the statements of US officials leading up to the war indicated their belief that a new Security Council resolution was required to make an invasion legal, but the UN Security Council has not made such a determination, despite serious debate over this issue. To secure Syria's vote in favor of Council resolution 1441, Secretary of State Powell reportedly advised Syrian officials that "there is nothing in the resolution to allow it to be used as a pretext to launch a war on Iraq."^[24]

The United States structured its reports to the United Nations Security Council around intelligence from the Central Intelligence Agency and Secret Intelligence Service (MI6) stating that Iraq possessed weapons of mass destruction. The US claimed that justification for the war rested upon Iraq's violation of several UN resolutions, most recently UN Security Council Resolution 1441.^[25]

[edit] Center for Constitutional Rights and Greenpeace

On 12 March 2003, eight days before the 2003 invasion of Iraq, the New York-based Center for Constitutional Rights, in coalition with Greenpeace, called upon UN member states to convene a General Assembly 'emergency special session' (ESS), under the terms of the Assembly's own 'Uniting for Peace' resolution, in the hope that the UN "unites as a whole to defend its founding principles and stop the impending attack on Iraq".^[26][27]

Had the Assembly actually met in ESS prior to the 20 March 2003 invasion, and consequently adopted an Assembly resolution declaring any invasion of Iraq illegal absent further Security Council authorization, it would have been made extremely difficult for the US and UK to have argued that the UN itself had already authorized the invasion. This fact is made plain by US efforts at the time to ensure that no ESS ever happened. By 18 March 2003, the US was making clear to UN member states that, "Given the current highly charged atmosphere, the United States would regard a General Assembly session on Iraq as unhelpful and as directed against the United States". UN members were also warned that: "the staging of such a divisive session could do additional harm to the UN".^[28]

[edit] Elizabeth Wilmshurst

In March 2003, Elizabeth Wilmshurst, then deputy legal adviser to the British Foreign Office, resigned in protest of Britain's decision to invade without Security Council authorization. Wilmshurst also insinuated that the British Attorney General Lord Goldsmith also believed the war was illegal, but changed his opinion several weeks before the invasion.^[29][30]

[edit] Richard Perle

Richard Perle, a senior member of the Bush Administration's Defense Policy Board Advisory Committee, conceded in November 2003 that the invasion was illegal but still justified.^[31][32]

[edit] Domestic law

[edit] United States

Further information: Iraq Resolution

[edit] Doe v. Bush

Main article: Doe v. Bush

In early 2003, the Iraq Resolution was challenged in court to stop the invasion and this challenge failed. Judge Lynch summarized the claims for illegality as: “They argue that the President is about to act in violation of the October resolution. They also argue that Congress and the President are in collusion -- that Congress has handed over to the President its exclusive power to declare war.”

Judge Lynch summarized the position of the United States Government as: "The defendants are equally eloquent about the impropriety of judicial intrusion into the "extraordinarily delicate foreign affairs and military calculus, one that could be fatally upset by judicial interference. Such intervention would be all the worse here, defendants say, because Congress and the President are in accord as to the threat to the nation and the legitimacy of a military response to that threat."

The final decision came from a three-judge panel from the US Court of Appeals for the First Circuit. Judge Lynch wrote "this issue is not fit now for judicial review" and that the Judiciary cannot intervene unless there is a fully-developed conflict between the President and Congress or if Congress gave the President "absolute discretion" to declare war.^[33]

[edit] United Kingdom

[edit] Opinion of the UK Attorney General

On 28 April 2005, the UK government published the full advice given by the Attorney General Lord Goldsmith on 7 March 2003 on the legality of the war. The publication of this document followed the leaking of the summary to the press the day before. In the document, Lord Goldsmith weighs the different arguments on whether military action against Iraq would be legal without a second UN resolution. He said,

I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force... Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution

He concluded his analysis by saying that "regime change cannot be the objective of military action".

[edit] Downing Street memo

Main article: Downing Street memo

On 1 May 2005, a related UK document known as the Downing Street memo, detailing the minutes of a meeting on 26 July 2002, was apparently leaked to The Times. British officials did not dispute the document's authenticity but did dispute that it accurately stated the situation. The Downing Street memo is relevant to the question of the legality of the 2003 invasion of Iraq because it discusses some legal theories that were considered prior to the invasion.

[edit] Germany

The German Federal Administrative Court on 21 June 2005 found in regard to the Iraq War that it had “grave concerns in terms of public international law."^[34] The Court did not make it clear that, in its opinion, the war and the contributions to it by the German Federal Government were outright illegal. ^[35]

In this minor criminal case the court decided not to convict a Major in the German Army of the crime of refusing duty that would advance the Iraq war. Nikolaus Schultz wrote of this decision: "The Court did not express an opinion as to whether the war on Iraq constituted an act of aggression in the first part of its judgment when dealing with the exceptions of the obligation of a German member of the Federal Armed Forces to obey orders. At a later stage in the written reasons, however, it jumped to the conclusion that a state, which resorts to military force without justification and, therefore, violates the prohibition of the use of force provided for by Art. 2.4 of the Charter, at the same time commits an act of military aggression. The (non-binding) Definition of Aggression of the GA attached to its Res. 3314 (XXIX) is broad enough to support this conclusion. However, it has to recalled that the State Parties to the Rome Statute of the International Criminal Court (ICC) could not agree on a definition of the crime of aggression."^[36]

Nikolaus Schultz wrote in summary of this case: "These findings were watered down to an extent by the Court when it used the cautious proviso that the actions of the states involved only gave rise to grave concerns before arguing the respective issues at stake. By doing that, the Court shifted the burden to the individual soldiers and their decision of conscience whether to obey an order rather than reaching the conclusion that participating in a war violating rules of international law, and even constituting an act of aggression, as the court held, would be illegal and, therefore, justify insubordination."^[37]

[edit] See also

• 2003 invasion of Iraq
• Command responsibility
• Ehren Watada
• Iraq Resolution
• Iraq War
• Jus ad bellum
• Legitimacy of the 2003 invasion of Iraq
• Rationale for the Iraq War
• United Nations Charter
• Views on the 2003 invasion of Iraq
• War of aggression
• War on Terrorism

[edit] Notes